What is the test for dismissing a second petition for habeas corpus?

MultiRegion, United States of America

The following excerpt is from Freeman v. McFadden, 37 F.3d 1505 (9th Cir. 1994):

A second petition for habeas corpus may be dismissed if "new and different grounds are alleged, [and] the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ." Rule 9(b), Rules Governing Section 2254 Cases, 28 U.S.C. Sec. 2254 (1982). A petitioner may abuse the writ by raising a claim in a second or subsequent petition that he could have raised in the first petition. McCleskey v. Zant, 499 U.S. 467, 489 (1991).

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